Legal Rulings

Known as the Heller Decision this 2008 Supreme Court ruling upheld the right to keep and bear handguns in homes. It is noteworthy that Scalia included in his opinion the following: "2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of fire-arms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons."

Known as the McDonald Decision the Supreme Court held in 2010 that the right to keep and bear arms guaranteed under the 2nd Amendment and affirmed by the Heller decision “is fully binding on the States and thus limits (but by no means eliminates) their ability to devise solutions to social problems that suit local needs and values.” The decision was based on the Due Process clause of the 14th Amendment. This decision affirms all that was decided in Heller affirming only the right to have a gun in a home for the purpose of self-defense.

Known as Heller II the United States Court of Appeals, District of Columbia Circuit heard arguments that challenged the constitutionality of the District's requirement that handguns be registered and its ban on assault weapons and large capacity magazines. The Court in 2011 decided in favor of the District of Columbia stating "We hold the District had the authority under D.C. law to promulgate the challenged gun laws, and we uphold as constitutional the prohibitions of assault weapons and of large-capacity magazines and [handgun] registration requirements". As a follow-up to this decision the DC Circuit "remanded the case to this Court to permit the parties to develop a more thorough factual record in relation to the lion’s share of the regulations." The Court concluded that "The Second Amendment requires the District to justify its firearm-registration requirements by presenting substantial evidence that they will achieve important governmental interests and that they are narrowly tailored to such ends. The Court ultimately concludes that the government has met that burden and that the regulations pass constitutional scrutiny."

The United States Court of Appeals for the 2nd Circuit in 2012 deliberated on the question "Can New York limit handgun licenses to those demonstrating a special need for self-protection?" The Court determined that "In light of the state’s considerable authority—enshrined within the Second Amendment—to regulate firearm possession in public, requiring a showing that there is an objective threat to a person’s safety—a “special need for self-protection”—before granting a carry license is entirely consistent with the right to bear arms. Indeed, there is no right to engage in self-defense with a firearm until the objective circumstances justify the use of deadly force." An appeal to the United States Supreme Court was denied.

The United States Court of Appeals for the 7th Circuit in 2012 deliberated on the question of whether the Second Amendment creates a right of self-defense outside the home and concluded: "that a right to carry firearms in public may promote self-defense" rendering unconstitutional the Illinois law that prohibited the carrying of firearms for self defense outside the home. But the ruling also stayed the voiding mandate to "allow the Illinois legislature to craft a new gun law that will impose reasonable limitations, consistent with the public safety and the Second Amendment as interpreted in this opinion, on the carrying of guns in public. State lawmakers enacted the Firearm Concealed Carry Act after that court ruling.

The United States Court of Appeals for the 11th Circuit in 2014 found that a state law prohibiting health care practitioners from asking patients questions about firearms in the home was a legitimate regulation of professional conduct and did not violate the physicians' First Amendment rights and was therefore constitutional. This decision overturned a District Court 2012 ruling that saw it as a violation of physicians' First Amendment rights. This case was reheard en blanc by United States Court of Appeals for the 11th Circuit and the panel's decision was overturned in a February 2017 decision. The Court concludes that "The Second Amendment right to own and possess firearms does not preclude questions about, commentary on, or criticism for the exercise of that right," and "We therefore sever the record-keeping , inquiry and anti-harassment provisions of FOPA and permanently enjoin thetheir enforcement."

The United States Court of Appeals for the 10th Circuit in 2013 found that the plaintiff's allegations that "Colorado’s licensing regime for concealed handguns violates the Privileges and Immunities Clause, the Second Amendment, and the Fourteenth Amendment." were not supported. While this suit is primarily about reciprocity between state granting authorities it does reaffirm that carrying a concealed weapon is not a right granted by the Constitution.

The United States Court of Appeals for the 3rd Circuit in 2013 heard a challenge to New Jersey's law regulating the carrying of concealed weapons. The appellants argued that "the “justifiable need” standard of the Handgun Permit Law is an unconstitutional prior restraint". The Court held that "that the District Court correctly determined that the requirement that applicants demonstrate a “justifiable need” to publicly carry a handgun for self-defense qualifies as a “presumptively lawful,” “longstanding” regulation and therefore does not burden conduct within the scope of the Second Amendment’s guarantee. We conclude also that the District Court correctly determined that even if the “justifiable need” standard fails to qualify as such a regulation, it nonetheless withstands intermediate scrutiny and is therefore constitutional." The Supreme Court declined to hear an appeal of this decision in 2014.

The United States Court of Appeals for the 5th Circuit in 2013 was asked to reverse a lower court decision that upheld the Federal law that barred federal firearm licensees from selling guns to individuals under the age of 21. The Court determined that "the challenged federal laws are constitutional under the Second Amendment. Heller does not cast doubt on them." and the Court rejected the "contention that the ban violates the equal protection component of the Fifth Amendment" while acknowledging that the ability for this age group to acquire guns through private sales or family gifts was granted under the Federal law. The Supreme Court declined to hear an appeal of this decision in 2014.

The United States Court of Appeals for the 5th Circuit in 2013 heard arguments that presented "a constitutional challenge to Texas’s statutory scheme, which does not allow 18-20-year-old adults to carry handguns in public." The Court noted that the "district court upheld the handgun licensing law on the ground that “the Second Amendment does not confer a right that extends beyond the home.” and agreed that the Texas statute [prohibits the majority of 18-20-year-olds from carrying a handgun in public: the general criminal provision sets as the default rule that Texans may not carry a handgun in public, and the civil licensing law makes 18-20-year-olds ineligible for the concealed handgun license exception to this default rule] was constitutional under the 2nd Amendment and the Equal Protection Clause. The Supreme Court declined to hear an appeal of this decision in 2014.

The United States District Court for the Western District of New York was asked to rule on several provisions of New York's SAFE Act including the assault weapons ban, ban on large capacity magazines and 7 round magazine limitations which was signed into law in January of 2013. The Court found that "the challenged provisions of the SAFE Act — including the Act’s definition and regulation of assault weapons and its ban on large-capacity magazines — further the state’s important interest in public safety, and do not impermissibly infringe on Plaintiffs’ Second Amendment rights. But "the seven-round limit fails the relevant test because the purported link between the ban and the State’s interest is tenuous, strained, and unsupported in the record." Several other parts of the Act were found to be unconstitutionally vague and therefore ruled unconstitutional.

In 2013 the 4th Circuit Court of Appeals found in favor of Maryland's restrictions on carrying guns in public places. They found "that there is a reasonable fit between the good-and-substantial-reason requirement [for carrying a concealed weapon] and Maryland’s objectives of protecting public safety and preventing crime." An appeal to the Supreme Court in October 2013 was denied.

The United States District Court, D. of Connecticut heard a challenge in 2014 to the state's assault weapons ban. "The issues presented are whether the legislation: 1) violates the plaintiffs' right under the Second Amendment to the U.S. Constitution to keep and bear arms; 2) violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution; and 3) contains portions that are unconstitutionally vague." The court concluded "that the legislation is constitutional. While the act burdens the plaintiffs' Second Amendment rights, it is substantially related to the important governmental interest of public safety and crime control. With respect to the equal protection cause of action, while the legislation does not treat all persons the same, it does not treat similarly situated persons disparately. Finally, while several provisions of the legislation are not written with the utmost clarity, they are not impermissibly vague in all of their applications and, therefore, the challenged portions of the legislation are not unconstitutionally vague." The decision has been appealed to the United States Court of Appeals for the 2nd Circuit. In June of 2016 the Supreme Court declined to hear a challenge to the Appeals Court ruling.

The United States Court of Appeals for the 9th Circuit in 2014 considered the argument that "by defining “good cause” in San Diego County’s [concealed weapon] permitting scheme to exclude a general desire to carry for self-defense, the County impermissibly burdens their Second Amendment right to bear arms." The Court had to decide "to what extent the San Diego County policy burdens the right or whether it goes even further and “amounts to a destruction of the right” altogether." In extensive review of sister court decisions on this question this Court disagreed with those findings and found that "San Diego County’s “good cause” permitting requirement impermissibly infringes on the Second Amendment right to bear arms in lawful self-defense." http://cdn.ca9.uscourts.gov/datastore/opinions/2014/02/13/10-56971%20web.pdf The 3 judge panel opinion provides a fascinating review of cases decided in the 19th century looking to them as sources for the original public meaning of the 2nd Amendment. The 9th has agreed to rehear this case which was decided by a panel of judges, not the whole bench. In June of 2016 the full court reversed the lower courts decision and declared that "We hold that the Second Amendment does not preserve or protect a right of a member of the general public to carry concealed firearms in public." Their decision is consistent with sister court decisions. In 2017 the Supreme Court declined to hear the challenge to the Appeals Courts rulings.

A three judge panel of the United States Court of Appeals for the 9th Circuit also found the "good cause" requirement in "the Yolo County policy impermissibly infringes on the Second Amendment right to bear arms in lawful self-defense" citing their Peruta decision. This decision will be heard along with Peruta by the full bench of the 9th.

The Supreme Court examined what constitutes physical force in the Federal law that prevents those convicted of a misdemeanor crime of domestic violence from possessing guns. In a unanimous decision in March of 2014 the Supreme Court ruled that "Because Castleman’s indictment makes clear that the use of physical force was an element of his conviction, that conviction qualifies as a “misdemeanor crime of domestic violence.” And as such upholds the firearms possession prohibition.

In June of 2014 the Supreme Court ruled that anyone buying a gun must be buying it for themselves and not someone else. "To be sure, federal law regulates licensed dealer’s transactions with “persons” or “transferees” without specifying whether that language refers to the straw buyer or the actual purchaser. But when read in light of the statute’s context, structure, and purpose, it is clear this language refers to the true buyer rather than the straw. Federal gun law establishes an elaborate system of in-person identification and background checks to ensure that guns are kept out of the hands of felons and other prohibited purchasers." To purchase a gun for someone else is now completely illegal irrespective of the person's eligibility to purchase a gun.

In a unanimous decision the 9th Circuit Court of Appeals in 2014 upheld the City of San Francisco’s ordinances requiring the safe storage of handguns and banning the sale of hollow-point ammunition. The Court found that the "requirement that persons store handguns in a locked storage container or with a trigger lock when not carried on the person was substantially related to the important government interest of reducing firearm-related deaths and injuries" and that reducing the lethality of ammunition was a reasonable measure in reaching that goal and did not infringe on an individual's 2nd Amendment rights. The Supreme Court declined to hear an appeal of this case in June, 2015.

US District Court, Northern District of Illinois, Eastern Division in 2014 held that the city's ban of assault weapons and large capacity magazines does not violate 2nd Amendment rights. The 7th Circuit Court of Appeals concurred in April of 2015 and in December of 2015 the Supreme Court declined to hear the case.

The US District Court D Colorado heard arguments in 2014 related to Colorado General Assembly gun control legislation that included two new criminal statutes: (1) C.R.S. § 18-12-302, banning the sale, possession, and transfer of "large-capacity magazines," as that term is statutorily-defined; and (2) C.R.S. § 18-12-112, expanding mandatory background checks to recipients of firearms in some private transfers. The judge found that Colorado Revised Statutes § 18-12-112 and § 18-12-302 are compliant with the provisions of the Second and Fourteenth Amendments to the United States Constitution. And noted that "the Supreme Court does not equate the Second Amendment "right to keep and bear arms" to guarantee an individual the "right to use any firearm one chooses for self-defense".

The US District Court for the Northern District of Texas Fort Worth Division ruled in early 2015 that the federal interstate handgun transfer ban is unconstitutional explaining that "The federal interstate handgun transfer ban is unique compared to other firearms restrictions because it does not target certain people (such as felons or the mentally ill), conduct (such as carrying firearms into government buildings or schools), or distinctions among certain classes of firearms (such as fully automatic weapons or magazine capacity). Instead, the federal interstate handgun transfer ban targets the entire national market of handgun sales and directly burdens law-abiding, responsible citizens who seek to complete otherwise lawful transactions for handguns." The court told the DOJ that it cannot enforce the provisions in 18U.S.C.§922(a)(3), 18U.S.C.§922(b)(3), and 27C.F.R.§478.99(a) .

The United States Court of Appeals for the 1st Circuit ruled in January of 2015 that "The question before us is a narrow one. We are asked to decide whether a conviction for reckless assault against a person in a domestic relationship in Maine constitutes a federal "misdemeanor crime of domestic violence." Congress in passing the Lautenberg Amendment recognized that guns and domestic violence are a lethal combination, and singled out firearm possession by those convicted of domestic violence offenses from firearm possession in other contexts. Castleman recognizes as much. For the reasons stated above, we affirm the judgments of guilt." http://media.ca1.uscourts.gov/pdf.opinions/12-1213P-01A.pdf The Supreme Court agreed to hear an appeal of this decision but will "review only the recklessness question; it declined to review a second question presented by the petition, which asked the Justices to rule on whether the ban on possession of firearms by individuals convicted of domestic violence violated their rights under the Second Amendment." In June 2016 the Supreme Court in its decision stated " The question presented here is whether misdemeanor assault convictions for reckless (as contrasted to knowing or intentional) conduct trigger the statutory firearms ban. We hold that they do."

US District Court for the Eastern District of California in ruled in February of 2015 that the state's Unsafe Handgun Act was constitutional and ruled that the law “imposes conditions and qualifications on the commercial sale of arms,” which the US Supreme Court specifically identified as a “presumptively lawful” regulation in its Heller decision. Judge Mueller found that the UHA “does not adversely impact the access to and sale of firearms” and concluded “[t]his degree of regulation is negligible and does not burden plaintiffs’ rights under the Second Amendment.” This ruling has been appealed to the 9th Circuit Court of Appeals.

A three judge panel of the US Court of Appeals for the 9th Circuit in March of 2015 upheld a lower court decision on the constitutionality of banning large capacity ammunition clips finding "that the Sunnyvale ordinance is substantially related to the compelling government interest in public safety" and "that the core impact on the core 2nd Amendment right is not severe".

A three judge panel of the US Court of Appeals for the 10th Circuit concluded "that the regulation [banning guns] is constitutional as to all USPS property at issue in this case, including the Avon Post Office parking lot, because the Second Amendment right to bear arms has not been extended to “government buildings.” They also stated that "Local and state laws do not trump federal laws, and those local and state regulations do not give Bonidy a right to openly carry a firearm on sensitive federal property. Thus, Bonidy’s right to carry in Colorado does not undermine the constitutionality of this USPS regulation." They also applied this reasoning to concealed carry. The effect is to say no one may bring a gun onto or into USPS property.

Know as Heller III the Court of Appeals for the District of Columbia Circuit in a 2015 2-1 decision found that: "For the reasons set forth above, the district court’s final order is AFFIRMED with respect to: the basic registration requirement as applied to long guns; the requirement that a registrant be fingerprinted and photographed and make a personal appearance to register a firearm; the requirement that an individual pay certain fees associated with the registration of a firearm; and the requirement that registrants complete a firearms safety and training course. The district court’s order is REVERSED with respect to the requirement that a person bring with him the firearm to be registered; the requirement that a gun owner re-register his firearm every three years; the requirement that conditions registration of a firearm upon passing a test of knowledge of the District’s firearms laws; and the prohibition on registration of “more than one pistol per registrant during any 30-day period,”

In July of 2015 the United States Court of Appeals for the 7th Circuit decided"that the Supreme Court has made clear that the Second Amendment protects the individual right to keep and bear arms, see District of Columbia v. Heller, 554 U.S. 570, 635–36 (2008), and applies equally to the states through theFourteenth Amendment, see McDonald v. City of Chicago , 561 U.S. 742, 791 (2010). And we have held that, subject to reason-able restrictions, the Second Amendment protects the right to carry a gun in public. See Moore v. Madigan, 702 F.3d 933, 942 (7th Cir. 2012). Considering these important developments inSecond Amendment law together with Wisconsin’s gun laws,we cannot accept the government’s contention that the possibility of a gun in Leo’s backpack posed a unique threat that justified a full search of the bag on less than probable cause."

In October 2015 the Court of Appeals for the 2nd Circuit combined two challenges to District Court opinions (see New York State Rifle and Pistol Association v Andrew M. Cuomo and Shew v Malloy above) and held that "The core prohibitions by New York and Connecticut of assault weapons and large-capacity magazines do not violate the Second Amendment." In June of 2016 the Supreme Court decline to hear an appeal to the Appeals Court ruling.

In February 2016 a 3-judge panel of the United States Court of Appeals for the 4th Circuit in a 2-1 decision held that "In sum, semi-automatic rifles and LCMs [large capacity magazines] are commonly used for lawful purposes, and therefore come within the coverage of the Second Amendment." The court held that "this is not a finding that Maryland’s law is unconstitutional. It is simply a ruling that the test of its constitutionality is different from that used by the district court." They ruled that the lower court must apply strict scrutiny to its ruling on the case and sent it back to be reviewed. On March 4 the U.S. Court of Appeals for the 4th Circuit effectively wiped out that decision and agreed to rehear the case "en banc," which means all of the 15 judges in active service on the court will hold a hearing jointly and decide the case anew. In February of 2016 the full court in a 10-4 decision reversed the panel decision and affirmed the ruling of the District Court holding that assault rifles are not protected under the 2nd Amendment.

In March 2016 the Supreme Court vacated a Massachusetts Superior Court ruling that upheld a ban on stun guns finding that stun guns are protected by the 2nd Amendment. The case was sent back to the lower court for retrial.

The 9th Circuit Court ruled that the 2nd Amendment protects the right to buy and sell firearms. The Court came to the "conclusion that the right to purchase and to sell firearms is part and parcel of the historically recognized right to keep and to bear arms."

In June of 2016 the United States Court of Appeals for the 7th Circuit held that gun owners rights were not violated by any of the provisions in the requirements for concealed carry in the state of Illinois. In January of 2017 the Supreme Court declined to hear an appeal of that decision.

In February of 2016 the United States Court of Appeals for the 4th Circuit determined that given expanded rights to carry guns in public "And as conduct once the province of law-breakers becomes increasingly commonplace, courts must reevaluate what counts as suspicious or dangerous behavior". However the three judge panel determined "where a sovereign state has made the judgment that its citizens may safely arm themselves in public, we cannot presume that public gun possession gives rise to a reasonable suspicion of dangerousness". The ruling was successfully challenged and heard by the 4th En Blanc. The full court overturned the panel and held that "The presumptive lawfulness of an individual’s gun possession in a particular State does next to nothing to negate the reasonable concern an officer has for his own safety when forcing an encounter with an individual who is armed with a gun and whose propensities are unknown."

SYLVESTER v HARRIS

The Court of Appeals for the 9th Circuit reversed a District Court ruling and upheld California law requiring a waiting period for all who wish to buy a gun regardless of prior purchase or concealed carry permit in December of 2016. The judges held that "the 10-day waiting period is a reasonable safety precaution for all purchasers of firearms and need not be suspended once a purchaser has been approved, we reverse the district court’s judgment. We do not need to decide whether the regulation is sufficiently longstanding to be presumed lawful. Applying intermediate scrutiny analysis, we hold that the law does not violate the Second Amendment rights of these Plaintiffs, because the ten day wait is a reasonable precaution for the purchase of a second or third weapon, as well as for a first purchase." The Supreme Court declined to hear a challenge to this ruling in February, 2018.

The United States District Court, District of Massachusetts, in April of 2018 ruled that Massachusetts assault weapons ban does not infringe on the rights granted under the 2nd Amendment because they are "not weapons within the original meaning of the individual constitutional right to "bear Arms"". The case was dismissed.

A three judge panel of the Court of Appeals for the 9th Circuit ruled in July, 2018 that the right to open carry a firearm is protected by the 2nd Amendment. The court "was satisfied that the Second Amendment encompasses a right to carry a firearm openly in public for self-defense. The panel stated that once identified as an individual right focused on self-defense, the right to bear arms must guarantee some right to self-defense in public. The panel held that because Hawaii law restricted plaintiff in exercising the right to carry a firearm openly, it burdened conduct protected by the Second Amendment."